The public closely follows high-profile exposés, searches, and the service of notices of suspicion, especially in corruption cases. However, these are only the initial stages of a pretrial investigation, aimed at recording what the investigative body considers a crime and collecting evidence to support that position.
The collected evidence then becomes the subject of thorough examination during the trial, as this is the stage at which the court must determine whether a person is indeed guilty of the criminal offense imputed to them. The complexity of evidence assessment, as well as the potential ability of defendants to influence evidence collection, is often cited as one of the key reasons why high-level corruption cases are so difficult to adjudicate. In criminal proceedings before the HACC, cases typically involve complex factual circumstances and large volumes of data, which requires the court to pay special attention to the relevance, admissibility, and credibility of each piece of evidence.
In this context, it is important to understand the basic rules applied by defense attorneys, prosecutors, and judges in assessing evidence. Therefore, in this material we outline, in general terms, how the HACC evaluates evidence.
General rules for assessing evidence in criminal proceedings
In general, evidence consists of factual data obtained in accordance with the procedure established by the Criminal Procedure Code of Ukraine, on the basis of which the court establishes facts that are relevant to the criminal proceedings.
In HACC cases, this definition covers a wide range of materials — from traditional written documents to technical information, data recorded through covert investigative actions, and expert opinions.
Thus, the assessment of evidence is the process by which the court forms its internal conviction regarding each individual piece of evidence and the totality of the evidence, guided by the provisions of the Criminal Procedure Code of Ukraine, logic, and the results of the direct examination of the materials.
Pursuant to Article 94 of the Criminal Procedure Code of Ukraine, the court is required to verify the relevance, admissibility, and credibility of each piece of evidence, as well as the sufficiency and interconnection of all the evidence taken together. In addition, the court must follow the principle that no piece of evidence has pre-established probative value.
Another key guideline for the court is the standard of proof “beyond a reasonable doubt.” This means that a person may be found guilty only if the prosecution’s version excludes any other reasonable explanation, and all doubts must be interpreted in favor of the defendant.
How are the relevance and credibility of evidence established?
Relevance means that a piece of evidence directly or indirectly confirms or refutes circumstances that are important for the case. In other words, the evidence must relate to the subject matter of the investigation and help establish the facts.
If evidence contains no factual information or does not relate to circumstances that must be proven, it is not considered relevant.
Credibility is not directly defined in the Criminal Procedure Code of Ukraine but is understood as the ability of evidence to accurately and without distortion reflect real events. Credible evidence is evidence that the court can rely on as truthful information. Issues of credibility most often arise in relation to witness testimony. The court assesses whether a witness could accurately observe or understand the events they describe and whether their statements are consistent with other evidence.
What is the admissibility of evidence?
Admissibility refers to the legality of the method by which evidence was obtained. Evidence is admissible if it was collected in compliance with the procedure prescribed by the Criminal Procedure Code of Ukraine.
Even the most valuable information for the prosecution will not be used by the court if it was obtained through a material violation of human rights and freedoms, in particular:
- procedural actions, such as searches or inspections, conducted without prior court authorization or in violation of statutory requirements;
- obtaining evidence through torture, cruel, inhuman, or degrading treatment, or threats of such treatment;
- violation of a person’s right to defense.
Court hearings often refer to the “fruit of the poisonous tree” doctrine, as it is critical for determining the admissibility of evidence. Its essence is the following: if the court establishes that the primary evidence was obtained through a material violation of rights, then derivative evidence obtained as a result of that primary evidence will also be deemed inadmissible.
Testimony provided by a witness who later acquires the procedural status of a suspect or defendant cannot be used for evidentiary purposes, as this would violate the person’s right to remain silent and the right not to testify against oneself.
Although the final determination of admissibility is made by the court in the deliberation room, in practice the court often reacts immediately. If the court identifies an obvious violation, it stops examining such evidence and recognizes it as manifestly inadmissible.
How does this work in practice at the HACC?
In practice, the HACC most often carefully assesses each piece of evidence by verifying its legality, relevance, and credibility.
In the case of Apollinarii Nahalevskyi, the former facilities manager of the Prosecutor General’s Office, an unscheduled audit report was declared inadmissible because the Criminal Procedure Code of Ukraine does not provide for such a method of obtaining evidence, and the powers of investigators and prosecutors to initiate audits had been revoked back in 2015. The expert opinion based on that inadmissible audit was also declared inadmissible — a textbook example of the “fruit of the poisonous tree” doctrine.
For example, in the case concerning UAH 15 million in damages to Boryspil Airport, the key issue was the credibility of a witness who provided most of the factual information. Notably, the court took into account the potential bias of the witness due to an employment conflict and business ties but still recognized the testimony as credible because of its logical consistency and corroboration by other evidence.
In the bribery case involving former Dnipro judge Andrii Leonov, the defendant submitted screenshots as evidence. However, the court noted signs of tampering: the date and time of creation appeared to have been altered. This indicated their falsity, and as a result, the court found them not credible.
In the case of former detective of the Prosecutor General’s Office Dmytro Sus, the court ruled the report of audio and video surveillance inadmissible because this covert action was, in essence, an interrogation conducted without ensuring the legal safeguards provided to a person being questioned. The court also declared a number of case materials irrelevant because they did not confirm any significant circumstances.
In the case of state inspector Oleksandr Dutko concerning abuses at customs, the court recognized certain inspection reports and internal memoranda relied upon by the prosecution as inadmissible. The reason was that they had been prepared in violation of procedural requirements: without the participation of a defense attorney, without proper recording, and in breach of jurisdictional rules. As a result, these documents could not confirm intent or grave consequences and were excluded from the body of evidence.
In one of the cases, the court declared part of the materials from covert investigative actions inadmissible because the recordings of the conversations had been made in violation of procedural rules without proper authorization from the investigating judge. In addition, the court pointed to incomplete transcripts and the absence of continuous recording.
Thus, the assessment of evidence in corruption cases, as in any other criminal case, is an exceptionally important process, and the court approaches it carefully and deliberately. Priority is given to the legality of obtaining evidence (admissibility), its connection to the case (relevance), and its truthfulness (credibility). Only a body of such evidence that confirms the prosecution’s case proves guilt beyond a reasonable doubt and may therefore serve as the basis for a conviction.